Filed 12/16/2016 3:19:08 PM

Gwen Ashworth
District Clerk
Morris County, Texas
By: Londa Clark
Deputy

CAUSE NO. 25,959

CODY WOMACK,
Contestant
V.
MIKE ALCORN, MARIE SKIPPER,
Contestees

IN THE DISTRICT COURT

276TH JUDICIAL DISTRICT

MORRIS COUNTY, TEXAS

CONTESTEE MARIE SKIPPERS AMENDED

MOTION FOR SUMMARY JUDGMENT

COMES NOW, Contestee, MARIE SKIPPER (Movant), and files this, her Amended
Motion for Summary Judgment, and in support thereof, and would show unto the Court the
following:
I.
NO GENUINE ISSUES AS TO MATERIAL FACTS
There are no genuine issues as to any material facts, and Movant is entitled to judgment as
a matter of law. For the purposes of this Motion only, Movant accepts as true all of the factual
allegations contained in the petition filed by Contestant.
II.
BASIS FOR MOTION
The Movant is entitled to a judgment as a matter of law because the facts alleged by
Contestant show that there are insurmountable obstacles to recovery. Namely, the Movant is not
a proper party to this case and the Contestant has no standing to file an election contest that
involves Movant. Additionally, the Contestant has failed to plead any facts that would indicate

CONTESTEE MARIE SKIPPERS AMENDED MOTION FOR SUMMARY JUDGMENT

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that illegal votes were counted or that an election officer took some action that subverted the will
of the voters. Further, the will of the voters is proven by the final tally of the votes.
III.
STATEMENT OF FACTS
The Daingerfield Lone Star Independent School District Board of Trustees, on January
19, 2016 called for a May 7, 2016 Board election for single member District 4; and At Large,
Positions 3 and 4. See, Order of Election attached to Exhibit A to this Motion for Summary
Judgment. Movant filed an application to be placed on the May 7, 2016 election ballot for
Position 3 @ large on January 20, 2016. See, Marie Skippers Application for a Place on the
Ballot attached to Exhibit A to this Motion for Summary Judgment. Contestant Cody Wommack
filed an application to be placed on the May 7, 2016 election ballot for Board of Trustees Member
At Large Position 4 on February 15, 2016. See, Cody Wommacks Application for a Place on the
Ballot attached to Exhibit A to this Motion for Summary Judgment.
Contestant did not file any written objection to the DLSISDs method of electing the AtLarge positions prior to the May 7, 2016 election. See, Affidavit of Sandra Quarles, Exhibit A
to this Motion for Summary Judgment.
The initial election returns showed that Movant Marie Skipper won the election for AtLarge Position 3 with a total of 319 votes. Contestants Original Petition at Paragraph #10. With
regard to At-Large Position 4, the initial returns indicated that Mr. Mike Alcorn prevailed with
352 votes (55%) as compared to 290 votes (45%) cast for Contestant Cody Wommack, a difference
of 62 votes. Id.
Pursuant to the Contestants demand for a recount, the At-Large Position 4 recount was
held on May 26, 2016 with the following results: Id.

CONTESTEE MARIE SKIPPERS AMENDED MOTION FOR SUMMARY JUDGMENT

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Mike Alcorn
Cody Wommack

Difference

349 votes (55%)

288 votes (45%)
61 votes

Accordingly, although the results of the recount decreased Mr. Alcorns winning margin
over Contestant by one (1) vote, the candidates percentages of the vote remained the same. Id.
Further, the actual number of votes cast for Contestant decreased by two (2), from 290 to 288. Id.
The two candidates receiving the most votes for the two at-large school trustee positions were (1)
Mr. Mike Alcorn with 349 votes and (2) Ms. Marie Skipper with 319 votes.
IV.
ARGUMENTS AND AUTHORITIES
A. The Proper Parties to an Election Contest.
The Contestant in this case has filed an election contest under Chapter 232, Subchapter A
of the Texas Election Code in relation to the May 7, 2016 Daingerfield Lone Star Independent
School District Board elections. Contestants Original Petition states that he was a candidate for
one of the two at large positions on May 7, 2016. Contestants Original Petition at Paragraph
#2. Specifically, Contestant was a candidate for At Large, Position 4 in that election. Id. at
Paragraph #10. Movant, however, was a candidate for At Large, Position 3 in the May 2016
election. Id. at Paragraph #10.
Texas Election Code 232.002 states: Any candidate in an election may contest the
election. Texas Election Code 232.003, in relevant part, states:
(a) If a contested election is for nomination or election to an office for which only one
person is to be nominated or elected, the contestee is:
(1)

the opposing candidate who is officially determined to be nominated or elected,

or in the case of a tie for the most votes, each of the opposing tied candidates

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B. The Contestant and Movant were not candidates in the same election.
As shown above, the Contestants own Original Petition states that he and Movant were
candidates for two different positions on the Daingerfield Lone Star ISD Board of Trustees.
Contestants Original Petition at Paragraph #10. Contestant ran as a candidate for At Large,
Position 4 and Movant ran as a candidate for At Large, Position 3. Id.
These facts are also established by the Application for a Place on the Daingerfield Lone
Star ISD General Election Ballot documents (Application) that were filed by both Contestant
and Movant, and which are included with the Affidavit of the Custodian of Records for
Daingerfield Lone Star ISD attached hereto as Exhibit A. The applications each provide a
space entitled Office Sought for potential candidates to fill. Contestant, Cody Wommack, wrote
the following in that space: Board of Trustees Member At Large Position 4. See, Exhibit A
to this Motion for Summary Judgment. Movant, Marie Skipper, by contrast, wrote the following
in the space provided for identifying the Office Sought: Position 3 @ large. Id.
A copy of the ballot for the May 7, 2016 Daingerfield Lone Star Independent School
District Board elections is also included with Exhibit A. The ballot plainly shows that the
candidates for School Trustee, At-Large Position 3 were (1) Ben Terry, (2) Marie Skipper, and
(3) Dwayne Staples, while the candidates for School Trustee, At-Large Position 4 were (1) Cody
Wommack and (2) Mike Alcorn. See, Exhibit A to this Motion for Summary Judgment. The
Contestant admits to these facts in his Original Petition. Contestants Original Petition at
Paragraph #10.
C. Contestant has no standing to file an election contest against Movant.
The Contestants Original Petition and the attached summary judgment evidence clearly
establish that Contestant, Cody Wommack, was not a candidate in the election for Daingerfield

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Lone Star ISD School Trustee, At-Large Position 3 that was held on May 7, 2016, but was
instead a candidate in the election for Daingerfield Lone Star ISD School Trustee, At-Large
Position 4 that was held that same day. Texas Education Code 232.002 defines Contestant
as: Any candidate in an election Since Mr. Wommack was not a candidate in the election for
School Trustee, At-Large Position 3, he has no standing to contest the results of that election.
D. Movant is not a proper party to this suit.
Since Movant was not an opposing candidate to the Contestant in the election for
Daingerfield Lone Star ISD School Trustee, At-Large Position 4, she is not a proper
contestee in this suit. See, Texas Election Code 232.003(a)(1).
E. The Purpose of the Election Code.
The purpose of the [Election] Code is to prohibit error, fraud, mistake, and corruption,
and yet it may not be used as an instrument of disfranchisement for irregularities of procedure.
Honts v. Shaw, 975 S.W.2d 816, 822 (Tex. App. -- Austin 1998). The Tyler Court of Appeals put
it slightly differently by stating: It is clear that the election laws will be strictly enforced to prevent
fraud, but liberally construed to effectuate the will of the voters at the election being contested.
Deffebach v. Chapel Hill Indep. Sch. Dist., 650 S.W.2d 510, 512 (Tex. App. -- Tyler 1983). The
Tyler Court then went on to say:
Indeed, it has been stated that the purpose of the election code and election laws
in general is to prohibit serious error, fraud, mistake and corruption, and . . . not
be used as an instrument of disfranchisement for irregularities of procedure.
Deffebach, 650 S.W.2d at 512; citing, Fugate v. Johnston, 251 S.W.2d 792 (Tex.
Civ. App. -- San Antonio 1952).
In other words, the will of the legal voters as expressed at the polls is the matter of paramount
concern. Honts, 975 S.W.2d at 822.

CONTESTEE MARIE SKIPPERS AMENDED MOTION FOR SUMMARY JUDGMENT

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F. The Scope of the Inquiry in an Election Contest.

Texas Election Code 221.003(a) clearly spells out the scope of the inquiry in an election
contest by stating the following:
(a) The tribunal hearing an election contest shall attempt to ascertain whether the
outcome of the contested election, as shown by the final canvass, is not the
true outcome because:
(1) illegal votes were counted; or
(2) an election officer or other person officially involved in the
administration of the election:
(A) prevented eligible voters from voting;
(B) failed to count legal votes; or
(C) engaged in other fraud or illegal conduct or made a mistake.
Tex. Elec. Code 221.003(a).
G. The Contestant has not Pleaded any Facts or made any Allegations within the Scope
of the Inquiry of an Election Contest under Texas Election Code 221.003.
Even if the Contestant and the Movant were candidates for the same position, the
Contestant has not asserted any claim upon which relief can be granted under the Texas Election
Code. As stated in Sections IV(E) and IV(F) above, the role of the Court in an election contest is
to determine whether or not the outcome of the election accurately reflects the will of the voters.
Texas Election Code 221.003 states that, in making that determination, the Court should examine
whether illegal votes were counted or whether an election officer or other administrator of the
election (a) prevented eligible voters from voting, (b) failed to count legal votes, or (c) engaged in
other fraud or illegal conduct or made a mistake. Tex. Elec. Code 221.003.
The Contestants Original Petition does not include any allegations of illegal votes being
counted. Contestants Original Petition. Likewise, the Original Petition does not include any
allegations that an election officer or other official administrator of the election prevented any

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eligible voters from voting, failed to count legal votes, or engaged in fraud or illegal conduct or
made a mistake.1
The Contestant has not asserted any wrongdoing on the part of any election official that
thwarted the will of the voters. Accordingly, even if Movant and the Contestant were vying of the
same elected position, which they were not, no election contest as recognized by the Texas Election
Code has actually been asserted and Movant Marie Skipper is entitled to summary judgment in his
favor.
H. Daingerfield Lone Star ISD Did Not Conduct the May 7, 2016 Election in Violation
of Board Policy.
The Contestant alleges Daingerfield Lone Star ISD conducted the election in violation
of the district policy manual. Contestants Original Petition at Paragraph #14. In support of his
assertion, Contestant quotes the following from the Daingerfield Lone Star ISD Board Policy
Manual: For the at-large positions, the candidates receiving the highest number of votes shall fill
the positions of the terms which are normally expiring.

Education Code 11.057(a), (b).

Contestants Original Petition at Paragraph #8.

Contestant has wrongfully attributed the cited language as being Board policy and has,
even more importantly, misinterpreted the language.
1.

The Daingerfield Lone Star ISD Policy Manuals (LEGAL) Sections

are not Policies Adopted by the Board of Trustees.

The language cited by Contestant in Paragraph #8 of his Original Petition quotes language
from BBB(LEGAL) from the Daingerfield Lone Star ISD Board Policy Manual. See, p. 4 of

The Third Court of Appeals has held: Although the Election Code does not define the term "mistake," we hold
that the mistake contemplated by the statute must be one of such magnitude as to affect the true outcome of the
election Honts v. Shaw, 975 S.W.2d 816, 823 (Tex. App. Austin 1998). No such mistake has been alleged
in this case.
1

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BBB(LEGAL) which is attached to Exhibit A to this Motion for Summary Judgment. This cited
language is not, however, adopted policy of the Daingerfield Lone Star ISD.
The Introduction to the Daingerfield Lone Star ISD Board Policy Manual describes the
manual as including two separate conventions, (LEGAL) and (LOCAL), which are both
generically referred to as policies. See, Introduction to Board Policy Manual which is attached
to Exhibit A to this Motion for Summary Judgment. The (LEGAL) portions of the manual are
simply restatements of federal and state statutes, administrative regulations, attorney general
opinions, Texas Education Commissioner decisions, case law, and other sources of legal authority.
Id. at p. 2 of the Introduction.
While the (LEGAL) policies are helpful to school officials in determining certain legal
requirements, they do not constitute Daingerfield Lone Star ISD adopted policy. The Fifth
Circuit Court of Appeals has defined an official policy as [A] policy statement, ordinance,
regulation, or decision that is officially adopted and promulgated by the municipality's lawmaking
officers or by an official to whom the lawmakers have delegated policy-making authority
Webster v. Houston, 735 F.2d 838, 841 (5th Cir. 1984)(emphasis added).
The Introduction to the Daingerfield Lone Star ISD Board Policy Manual specifically
states the following: Please note that (LEGAL) policies are NOT adopted by the Board. See,
Introduction to Board Policy Manual at p. 4 which is attached to Exhibit A to this Motion for
Summary Judgment. The (LEGAL) sections of the Policy Manual are not, therefore, official
policies of Daingerfield Lone Star ISD. Accordingly, the District could not have conducted the
election in violation of Board policy as alleged by the Contestant.

CONTESTEE MARIE SKIPPERS AMENDED MOTION FOR SUMMARY JUDGMENT

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2.

The Language Cited by Contestant is a Reference to the use of a Plurality

as Opposed to a Majority to Determine the Winner of an Election.

The BBB(LEGAL) language cited by Contestant in Paragraph #8 is actually a restatement

of Texas Education Code 11.057(a) and (b). Under Texas Education Code 11.057(a) and
11.057(b), the candidate who receives a plurality of the votes is the winner of the election unless
the Board has adopted a resolution that requires the winner to receive a majority of the votes cast
pursuant to 11.057(c). Accordingly, unless a 11.057(c) is adopted, school board elections do
not result in runoffs to determine a winner, no matter how many candidates have signed up for the
trustee position.
The Daingerfield Lone Star ISD properly followed the provisions of Texas Education
Code 11.057(a) at the May 7, 2016 Board election. This is demonstrated by the results of the
race for At-Large, Position 3, which involved three different candidates. Movant Marie Skipper
did not receive the majority of the vote but was the candidate who received the most votes (319
votes against the second leading candidate who received 272 votes) and was properly determined
to be the winner. Contestants Original Petition at Paragraph #10.
Likewise, Mr. Mike Alcorn received the most votes in his race against the Contestant, so
Mr. Alcorn was properly determined to be the winner.
The winners of the May 7, 2016 Daingerfield Lone Star ISD races for the At-Large
positions were properly determined under Texas Education Code 11.057(a).
3.

The Daingerfield Lone Star ISD Properly Designated the At-Large Seats
by Position for the May 7, 2016 Election.

The Daingerfield Lone Star Independent School District Board of Trustees, on January
19, 2016 called for a May 7, 2016 Board election for single member District 4; and At Large,
Positions 3 and 4. See, Order of Election attached to Exhibit A to this Motion for Summary

CONTESTEE MARIE SKIPPERS AMENDED MOTION FOR SUMMARY JUDGMENT

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Judgment. The At-Large Seats 3 and 4 have been elected by position since at least 1971. See,
Affidavit of Sandra Quarles, Exhibit A to this Motion for Summary Judgment; see also,
Historical Record of Elections for At-Large Positions 3 and 4, attached to Exhibit A to this
Motion for Summary Judgment.
As required by law, the official ballot listed each At-Large seat by position, as ordered by
the Daingerfield Lone Star ISD Board of Trustees. See, Official Ballot attached to Exhibit A
to this Motion for Summary Judgment. There were no errors in the manner in which the election
was conducted. Further, the will of the voters is fully demonstrated by the final canvass of the
vote.
4.

The Election Results Would Have Remained the Same Even if the AtLarge Seats had not been Designated by Position.

Even though the At-Large Daingerfield Lone Star ISD Board of Trustee seats up for
election at the May 7, 2016 Board election were properly designated by position, the results of the
election would have remained the same even had they not be so designated. The Contestants
Original Petition shows the following vote totals in descending order for all candidates for
Positions 3 and 4:
Mike Alcorn
Marie Skipper
Cody Wommack
Ben Terry
Dwayne Staples

349 votes
319 votes
288 votes
272 votes
69 votes

Therefore, under the provisions of Texas Education Code 11.057(b), even if the two seats
had not been designated by position, Mr. Mike Alcorn and Movant Marie Skipper would still have
been elected because they were the two candidates receiving the highest number of votes. Again,
nothing alleged by the Contestant in his Original Petition, even if true, would have resulted in a
different outcome in the election. Additionally, the Contestant has not pleaded and cannot prove

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that irregularities by election officials rendered the determination of the true will of the voters
impossible. Prado v. Johnson, 625 S.W.2d 368, 371 (Tex. App. San Antonio 1981).
V.
CONCLUSION
Contestant, Cody Wommack, and Movant, Marie Skipper, were not opposing candidates
in the May 7, 2016 Daingerfield Lone Star ISD Board elections. Mr. Wommack was a candidate
in the School Trustee, At-Large Position 4 election, while Movant was a candidate in the School
Trustee, At-Large Position 3 election. Accordingly, Mr. Wommack has no standing to contest
the results of the School Trustee, At-Large Position 3 election in which Movant was the leading
vote-getter. Similarly, Movant cannot be a proper contestee in any election contest filed by Mr.
Wommack because she was not an opposing candidate in the School Trustee, At-Large Position
4 election.
Additionally, the Contestant has failed to plead, and cannot prove, that any illegal votes
were counted or that any election official committed any wrongdoing or any mistake that would
have affected the true outcome of the election. In fact, the Contestant does not even claim that the
true will of the voters was thwarted. Instead, he argues that if the election for the expiring seats
had been held in a different manner, then possibly a different slate of candidates would have run
for office and different people would have been elected. Contestants Original Petition at
Paragraph #14. The Contestants proposition is not the proper standard for overturning an election
under the Texas Election Code. The Contestant is not asking this Court to determine the true will
of the voters, the true will being clearly shown by the final election results. Instead, he is asking
this Court to thwart the demonstrated will of the voters. Texas courts have routinely held that the
provisions of the Texas Election Code should not be used as an instrument to disenfranchise voters,
and yet that is precisely what the Contestant is trying to do. The Contestant has not asserted any

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basis under the law for overturning the results of the May 7, 2016 Daingerfield Lone Star ISD
Board elections, and has certainly not asserted any basis for overturning the results of the At-Large,
Position 3 election.
For all of the above, Movant is entitled to summary judgment in her favor and should be
dismissed from this lawsuit with prejudice.
VI.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Movant, Marie Skipper, prays that this
Honorable Court will grant this Amended Motion for Summary Judgment, dismiss Movant from
this lawsuit with prejudice, and will award to Movant such other and further relief to which she
may be entitled, at law or in equity.
Respectfully Submitted,
POWELL & LEON, L.L.P.
1001 ESE Loop 323, Suite 450
Tyler, Texas 75701
Telephone: (903) 526-6618
Fax: (903) 526-5766

By:

V. Jay Youngblood
State Bar of Texas No. 22220200
jyoungblood@powell-leon.com
ATTORNEYS FOR MOVANT

CONTESTEE MARIE SKIPPERS AMENDED MOTION FOR SUMMARY JUDGMENT

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CERTIFICATE OF SERVICE
A true and correct copy of the foregoing Amended Motion for Summary Judgment has
been served on the 16th day of December, 2016 by Certified Mail, Return Receipt Request and by
USPS Mail on the following:
Cody Wommack
220 Haley
Lone Star, Texas 75668
CMRRR # 7015 1520 0000 0126 8215

V. Jay Youngblood

NOTICE OF HEARING DATE AND TIME

A hearing on the foregoing Contestee Marie Skippers Amended Motion for Summary
Judgement is schedule for hearing and oral argument as follows:
Date of Hearing:

January 13, 2017

Time of Hearing:

2:00 p.m.

Location of Hearing:

276th Judicial District Court of Morris

County, Texas
500 Broadnax
Daingerfield, Texas 75638

CONTESTEE MARIE SKIPPERS AMENDED MOTION FOR SUMMARY JUDGMENT

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EXHIBIT "A"